Terms of Supply to Trade Customers
- Application of terms
- Orders and ordering
- Limitation of liability
- Force majeure
1.1 The definitions and rules of interpretation in this clause apply in these terms: Buyer: the person, firm or company who places an order for Goods from RHS. RHS: RH Smith & Son (Wigmakers) Ltd, registered in England, registered office: Peckett Plaza, Gainsborough Business Park, Gainsborough, Lincolnshire DN21 1FJ (company no. 01179968). RHS' VAT registration number is GB 129 5795 28. RHS is a member of the Giftware Association. Contract: the contract, incorporating these terms, between RHS and the Buyer for the sale and purchase of the Goods set out in the relevant Order accepted by RHS in accordance with these terms. Forward Order: has the meaning set out in clause 5.3. Goods: the goods (including any part or parts of them) ordered by the Buyer and agreed to be supplied by RHS pursuant to the relevant Order accepted by RHS in accordance with these terms. Order: an order placed by the Buyer in accordance with these terms. Website: trade.smiffys.com
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these terms.
2. Application of terms
2.1 Subject to any variation under clause 2.2, the Contract shall be on these terms to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of Order, specification or other document). No terms or conditions endorsed on, delivered with or contained in the Buyer's purchase order, confirmation of Order, specification or other document shall form part of the Contract.
2.2 These terms apply to all RHS sales and any variation to these terms and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director of RHS. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of RHS which is not set out in the Contract. Nothing in this clause shall exclude or limit RHS liability for fraudulent misrepresentation.
3. Orders and ordering
3.1 Goods may be ordered by the Buyer submitting an Order by any of the following means: in person, in writing, by fax, by telephone, by email or through the Website. By prior arrangement, RHS may, in its discretion, permit the Buyer to place Orders using RHS' electronic ordering facility, subject to the terms and conditions of a separate agreement to be entered into between RHS and the Buyer. In all cases, the Buyer shall ensure that the details of its Order and any applicable specification are complete and accurate.
3.2 Each Order placed by the Buyer by whatever means (including the Buyer accepting any quotation for Goods from RHS) shall be deemed to be an offer by the Buyer to buy Goods subject to these terms. RHS issuing of any quotation (in whatever form) does not, of itself, constitute a Contract.
3.3 No Order placed by the Buyer shall be deemed to be accepted by RHS until an Order confirmation is issued by RHS or (if earlier) RHS delivers the Goods. Each Order accepted by RHS shall constitute a separate Contract.
3.4 No Order accepted by RHS may be cancelled by the Buyer without the express prior written consent of RHS, except that a Forward Order may be cancelled by the Buyer by notice in writing, provided such notice is received by RHS prior to despatch of the Goods. If a Forward Order is cancelled by the Buyer, RHS shall be entitled to invoice the Buyer for 50% of the price for the Goods.
3.5 Where the Buyer orders Goods for re-sale, onward supply or distribution (rather than for its own use), the Buyer agrees that it must satisfy the selective distribution criteria contained in RHS' standard form of distribution agreement which the Buyer must enter into with RHS.
3.6 In the event that the Buyer wishes to place an order for Goods which are not available from stock (“Bespoke Order”), RHS may, by special arrangement and at its sole discretion, agree to supply such Bespoke Order. When the Buyer places a Bespoke Order, the Buyer represents and warrants that:
- 3.6.1 the Buyer is the sole unencumbered, absolute legal and beneficial owner of all Intellectual Property Rights (defined below) and all other rights whatsoever in any specification, design or other materials (“Buyer Materials”);
- 3.6.2 the manufacture of the Goods in accordance with the Buyer Materials (in whole or in part) by RHS will not infringe the rights (whether Intellectual Property Rights or otherwise) of any third party;
- 3.6.3 the Buyer Materials are not subject to any claims, proceedings, challenges or litigation (whether actual, pending or threatened) in relation to the ownership, use or validity of the Buyer Materials;
- 3.6.4 the Buyer Materials will not contain anything that is unlawful, threatening, abusive libelous, pornographic, obscene, vulgar, indecent or offensive;
- 3.6.5 the Buyer Materials will not contain or distribute any virus, code or other malware;
- 3.6.6 the Buyer Materials will not contain anything which impersonates, represents or misrepresents an affiliation with any person or entity other than the Buyer themselves.
3.7 The Buyer acknowledges that it is responsible for ensuring the completeness and accuracy of the Buyer Materials when a Bespoke Order is placed.
3.8 The Buyer warrants that it has the right to grant and hereby grants to RHS and its affiliates a perpetual, irrevocable, worldwide, non-exclusive, royalty free and fully sub-licensable right and licence to use, reproduce, modify and adapt such Buyer Materials (in whole or part) and/or to incorporate it in other works in any form.
3.9 The Buyer agrees to indemnify and keep indemnified RHS from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by RHS as a result of or in connection with any breach by the Buyer of any of the representations and/or warranties given in clause 3.6 and/or 3.8 or the licence granted in clause 3.8. This indemnity shall apply whether or not the Buyer has been negligent or at fault. The Buyer shall, at RHS’s request, provide all reasonable assistance to RHS to enable RHS to resist any claim, action, proceeding or litigation resulting from the breach of the warranties given by the Buyer in clause 1.1.
3.10 Intellectual Property Rights means, any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, mask works, utility models, domain names, rights in computer software and all similar rights of whatever nature and, in each case: (i) whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future and (v) wherever existing.
All samples, drawings, descriptive matter, specifications and advertising issued by RHS and any descriptions or illustrations (whether contained in any RHS catalogue or brochure, on the Website or otherwise) are for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and there is no sale by sample.
5.1 Delivery of the Goods shall take place as follows:
(a) if the Goods are being despatched to the Buyer by RHS' appointed carrier, delivery of the Goods shall take place on their arrival at the Buyer's designated place of delivery; or
(b) if so agreed by RHS, in accordance with the delivery term under Incoterms (2010) specified in the relevant Order accepted by RHS.
5.2 Buyer-requested delivery dates are not guaranteed by RHS and any dates specified by RHS for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates for delivery are specified, delivery shall be within a reasonable time.
5.3 The Buyer may, when placing an Order, request a forward delivery date, which means a date more than 30 days in the future from the date of Order placement (“Forward Order”) but, in accordance with clause 5.2, the delivery date is not guaranteed.
5.4 Subject to the other provisions of these terms, RHS shall not be liable for any delay in the delivery of the Goods, nor shall any delay entitle the Buyer to terminate the Contract unless such delay exceeds 90 days.
5.5 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or RHS is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
(a) the Goods shall be deemed to have been delivered;
(b) risk in the Goods shall pass to the Buyer (including for loss or damage caused by RHS' negligence);
(c) RHS may store the Goods until actual delivery and the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
5.6 Where the Buyer wishes to collect the Goods, the Buyer shall, at its expense, provide adequate and appropriate equipment and manual labour for loading the Goods at the collection point.
5.7 If RHS delivers a quantity of Goods of up to 10% more or less than the quantity accepted by RHS, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract price.
5.8 RHS may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
5.9 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
5.10 Orders for delivery outside the country from which they are despatched may be opened and inspected by customs authorities and may be subject to import duties and taxes which are levied when the delivery reaches the specified destination. The Buyer will be responsible for payment of any such import duties and taxes. RHS has no control over these charges and cannot predict their amount. Furthermore, the Buyer must comply with all applicable laws and regulatory requirements of the country for which the Goods are destined. RHS will not be liable for any breach by the Buyer of such laws or regulatory requirements.
6.1 The quantity of any consignment of Goods as recorded by RHS on despatch by RHS shall be conclusive evidence of the quantity received on delivery unless the Buyer can provide conclusive evidence proving the contrary.
6.2 RHS shall not be liable for any non-delivery of Goods (even if caused by RHS' negligence) unless the Buyer gives written notice to RHS of the non-delivery within seven days of the date when the Goods would, in the ordinary course of events, have been received.
6.3 Any liability of RHS for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note, at the pro rata Contract price, against any invoice raised for such Goods.
7.1 RHS does not operate a sale or return policy.
7.2 The Goods are at the risk of the Buyer from the time of delivery in accordance with clause 5.1 and it is the Buyer's responsibility to ensure the Goods are insured from that time forward.
7.3 Ownership of the Goods shall not pass to the Buyer until RHS has received in full (in cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to RHS from the Buyer on any account.
7.4 Except to the extent the Buyer resells the Goods in accordance with clause 7.5, until ownership of the Goods has passed to the Buyer, the Buyer shall:
(a) hold the Goods on a fiduciary basis as RHS' bailee;
(b) store the Goods (at no cost to RHS) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as RHS' property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured on RHS' behalf for their full price against all risks to the reasonable satisfaction of RHS. On request, the Buyer shall produce the policy of insurance to RHS;
(e) remain liable to RHS for the Goods; and
(f) grant RHS, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them. Upon the occurrence of any of the events listed in clauses 7.6(a) to (e) (inclusive), such right shall be exercisable without any restriction from any appointed liquidator, trustee, administrator, receiver or other office holder. RHS shall be entitled to charge a handling and administration fee in respect of the recovery of Goods pursuant to this clause of no more than 25% of the Contract price for such Goods
7.5 The Buyer may resell the Goods before ownership has passed to it solely on the following terms:
(a) any sale shall be effected in the ordinary course of the Buyer's business at market value;
(b) any such sale shall be a sale of RHS' property on the Buyer's own behalf and the Buyer shall deal as principal when making such a sale without creating any relationship, disclosed or undisclosed, between RHS and any customer of the Buyer; and
(c) the proceeds of any such sale shall be paid into a bank account in the name of and under the control of the Buyer which is separate from all other bank accounts and other monies and assets of the Buyer and any third parties and which is not overdrawn.
7.6 The Buyer's right to possession of the Goods and the Buyer's right to resell the Goods before ownership has passed to it shall terminate immediately if:
(a) the Buyer (being an individual) has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or
(b) the Buyer (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer;
(c) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between RHS and the Buyer;
(d) the Buyer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a body corporate) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(e) any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 7.6(a) to (d) (inclusive);
(f) the Buyer is subject to a material change in control;
(g) the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business;
(h) the Buyer encumbers or in any way charges any of the Goods; or
(i) the Buyer's financial position deteriorates to such an extent that in RHS' reasonable opinion the Buyer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
7.7 Upon the occurrence of any of the events listed in clause 7.6, or in circumstances where RHS reasonably believes that any of the events listed in clause 7.6 are about to occur and it notifies the Buyer of such reasonable belief, then, without limiting any other right or remedy available to RHS, RHS may cancel or suspend all further deliveries under the Contract, or under any other contract between the Buyer and RHS, without incurring any liability to the Buyer, and all payments payable to RHS under the Contract, or under any other contract between the Buyer and RHS, shall become immediately due and payable.
7.8 RHS shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from RHS.
7.9 On termination of the Contract, howsoever caused, RHS (but not the Buyer's) rights contained in this clause 7 shall remain in effect.
8.1 Unless otherwise agreed by RHS in writing, the price for the Goods shall be the price set out in RHS' price list (contained in RHS' catalogue or brochure or, for orders placed through the Website, as set out on the Website) current as of the date of acceptance by RHS of the relevant Order.
8.2 The price for the Goods shall be exclusive of any VAT (or other applicable sales tax) and all costs or charges in relation to packaging, delivery, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.
8.3 The Website contains a large number of Goods and, despite RHS' best efforts, some of the Goods listed on the Website may not be priced correctly. RHS will normally check prices as part of RHS' despatch processes so that, where the correct price of Goods is less than RHS' stated price, RHS will charge the lower amount. However, if the correct price of Goods is higher than the price stated on the Website, RHS will usually, at RHS' discretion, either reject the Order and inform the Buyer of such rejection, or contact the Buyer for instructions before despatching the Goods.
9.1 All Goods must be paid for, in full, when the relevant Order is placed by the Buyer unless the Buyer has agreed credit terms with RHS, in which case clause 9.2 shall apply.
9.2 Where the Buyer buys more than £3,000 of Goods per annum, RHS may, in its absolute discretion, and subject to credit assessment, grant credit terms to the Buyer, up to a credit limit determined by RHS and notified to the Buyer, from time to time. If such credit terms are granted by RHS to the Buyer, all Orders must be paid for, in full, either within 30 days of the date of the relevant invoice from RHS (which will be issued when the relevant Order is despatched) or, if so agreed by RHS, within 30 days of the end of the calendar month in which the such invoice is dated, unless otherwise agreed in writing signed by RHS, except that:
(a) for Bespoke Orders, 50% of the total value of the Bespoke Order must be paid on the date of issue, by RHS, of the relevant Order confirmation and the balance of 50% on the date of issue, by RHS, of the relevant invoice; and
(b) for Orders that are forward-placed by the Buyer between 1 January and 1 April (inclusive) for delivery between 1 June and 1 November (inclusive) (“Halloween Orders”), the Buyer may apply to RHS for extended credit allowing payment to be made, in full, by no later than 5 November in the same year, provided always that the Buyer is within its credit limit. Orders will not be despatched if the Buyer is not within its credit limit. RHS reserves the right, on written notice to the Buyer, to withdraw any credit facility or to reduce any credit limit, in which event payment of all invoiced amounts or all invoiced amounts in excess of the reduced credit limit (as the case may be) shall become due immediately.
9.3 Where RHS agrees to grant credit terms, payment must, unless otherwise agreed, be made by Direct Debit to RHS' nominated bank account, unless RHS has expressly agreed to accept payment by credit card or debit card, or, from Buyer's located in the United States, by cheque. Payment by credit card, if accepted as a payment method, is subject to a handling fee of 2% of the amount of the card transaction.
9.4 Time for payment shall be of the essence. An interest charge of 5% per annum above the then-current base lending rate of the Bank of England may, at RHS' discretion, be charged on all invoices overdue for payment, calculated on a daily basis, until judgment or sooner payment. In addition, a charge of £15.37 may be made to cover the cost of any dishonoured Direct Debit or, if accepted as a payment method, any dishonoured cheque or declined credit card or debit card payment. AII costs and charges incurred by RHS in the collection of overdue accounts will be invoiced to, and will be the responsibility of the buyer.
9.5 No payment shall be deemed to have been received until RHS has received cleared funds.
9.6 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
9.7 Where RHS accepts payment by credit or debit card (including for Orders placed through the Website), for security reasons, the statement address for the credit or debit card used to pay has to be the same as the delivery address for the Order. Card transactions are subject to validation checks by the card issuer and RHS is not liable if the card issuer declines to authorise payment for any reason. It is possible that the card issuer may charge an online handling fee or processing fee for which RHS is not liable.
9.8 All payments payable to RHS under the Contract shall become due immediately on its termination despite any other provision. RHS have the right to suspend/hold any goods until the account is paid to terms or brought within their credit limit.
10.1 Where RHS is not the manufacturer of the Goods, RHS shall use reasonable endeavours to transfer to the Buyer the benefit of any warranty, guarantee or similar statement given to RHS.
10.2 RHS warrants that (subject to the other provisions of these terms) at the date of delivery, the Goods shall comply in all material respects with RHS' published specification and be substantially free from defects in material and workmanship.
10.3 Subject to clause 11.2, RHS shall not be liable for any damaged or defective Goods or other non-conformity with the Contract unless the Buyer gives written notice to RHS within seven days of delivery. Goods may not be returned unless the Buyer gives written notice of the defect to RHS by completing RHS' authorisation form which is available from RHS' Credit and Returns Department (the "Authorisation Form") and the Authorisation Form is approved by RHS.
10.4 Subject to clause 11.2, RHS shall not be liable for a breach of the warranty in clause 10.2 if:
(a) the Buyer makes any further use of such Goods after giving the notice referred to in clause 10.3;
(b) the defect arises because of any failure to follow RHS' oral or written instructions as to the storage, use or care of the Goods or (if there are none) good trade practice; or
(c) the Goods have been altered or repaired other than by RHS.
10.5 Subject to clause 10.3 and clause 10.4, if any of the Goods do not conform with the warranty in clause 10.2, RHS shall, at its option, repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract price provided that, if RHS so requests, the Buyer shall, at RHS' expense, return the Goods or the part of such Goods which is defective to RHS.
10.6 If RHS complies with clause 10.5, it shall have no further liability for a breach of the warranty in clause 10.2.
11. Limitation of liability
11.1 Except as expressly set out in these terms and subject only to clause 11.2, no implied conditions, warranties or other terms, including any implied terms relating to satisfactory quality or fitness for any purpose, will apply to any Goods or to anything supplied or provided by RHS under any Contract.
11.2 Nothing in these terms excludes or limits the liability of RHS:
(a) for death or personal injury caused by its negligence;
(b) for fraudulent misrepresentation or for any other fraudulent act or omission;
(c) under Part I of the Consumer Protection Act 1987;
(d) for breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(e) for any other liability which may not lawfully be excluded or limited.
11.3 Subject to clause 11.2, RHS shall not be liable (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) for any:
(a) loss of profit;
(b) loss of sales, turnover, revenue or business;
(c) loss of customers, contracts or opportunity;
(d) loss of or damage to reputation or goodwill;
(e) loss of anticipated savings;
(f) loss of any software or data;
(g) loss of use of hardware, software or data;
(h) loss or waste of management or other staff time; or
(i) indirect, consequential or special loss; arising out of or relating to any Contract, whether or not such loss was foreseeable or if RHS was advised of its possibility (and, for the purposes of this clause 11.3, the term "loss" includes a partial loss or reduction in value as well as a complete or total loss).
11.4 Subject to clauses 11.2 and 11.3, RHS' maximum liability arising out of or relating to each Contract or its subject matter (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) shall be limited to the Contract price.
12.1 RHS may assign the Contract or any part of it to any person, firm or company.
12.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of RHS.
13. Force majeure
RHS reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if RHS is prevented from or delayed in the carrying on of its obligations due to circumstances beyond the reasonable control of RHS including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 90 days, the Buyer shall be entitled to give notice in writing to RHS to terminate the Contract.
14.1 Each right or remedy of RHS under the Contract is without prejudice to any other right or remedy of RHS whether under the Contract or not.
14.2 Any reference in these terms to "in writing" or "written" (or similar words) shall include a communication sent by email, provided however that any notice required by the Contract to be given by the Buyer to RHS shall be in writing (not including email) and shall be served by sending the same by certified mail (return receipt requested) to RHS at such address as has been notified in writing from time to time by RHS.
14.3 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity. voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
14.4 Failure or delay by RHS in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
14.5 Any waiver by RHS of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
14.6 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
14.7 Contracts may be concluded in English only and there are no public filing requirements.
14.8 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit non exclusive jurisdiction of the English courts.
14.9 RHS reserves the right to amend these terms from time to time by amending them on the Website, although no such change will affect any Order already accepted by RHS. These terms were last updated on 14th August 2019.